Bartlett v. Smith , 146 Mich. 188 ( 1906 )

Grant, J

{after stating the facts). 1. The plaintiffs had had the possession and use of the land for three years. They had made no improvements. The result of the instruction given by the circuit judge and the verdict of the jury is to deprive the defendant of the use of the property for three years, and to give the use thereof to the plaintiffs free of rent. Such an inequitable result finds no support in the law. If plaintiffs were entitled to recover, the rule is that they were entitled to recover the payments made, and the reasonable value of the improvements made in good faith, less the value of the use of the premises. 2 Sutherland on.Damages, § 586.

2. The promise to extend the time of payment, if made, was a mere naked promise, resting in parol, without any consideration, and was therefore of no validity. Ferris v. Johnson, 136 Mich. 227.

3. Defendant insists that time was of the essence of the contract, and that plaintiff had violated the contract by nonpayment, and therefore cannot maintain a suit at* law; while plaintiff urges that it was the duty of the defendant to give notice of his option to declare the contract forfeited, and that the execution of a deed without plaintiff’s knowledge or consent was a violation of the contract, and entitled him to recover back the money — citing Atkinson v. Scott, 36 Mich. 18; Davis v. Strobridge, 44 Mich. 157; Weaver v. Aitcheson, 65 Mich. 285. It is unnecessary to determine these questions, as plaintiff for another reason is entitled to maintain his suit. Defendant covenanted that the land was free from all incumbrances, and to give a warranty deed. The land was subject to a mortgage, which was not discharged until June 14, 1904. Defendant was not in position to demand payment or to forfeit the contract until he was in a position to perform it himself. Dwight v. Cutler, 3 Mich. 566; Getty v. Peters, 82 Mich. 661 (10 L. R. A. 465).

4. Defendant offered to show that the grantee to whom he conveyed the land was informed of the plaintiff’s land contract, and purchased subject to it. It was error to re-j.ect this testimony. Kreibich v. Martz, 119 Mich. 343.

5. In view of a new trial, it is well to state that the plaintiff testified that he was in the possession of this property at the time the sale was made. If he was in possession, he could not haye suffered damage by the act of the defendant in deeding away his interest in the property. Possession was notice to the purchaser of all his rights, and he could assert his contract against defendant’s vendee, as well as against the defendant.

Judgment reversed, and new trial ordered.

Carpenter, C. J., and McAlvay, Hooker, and Moore, JJ., concurred.